Mason v. State
312 Ga. App. 723
Ga. Ct. App.2011Background
- Mason was convicted by a Banks County jury of two counts of aggravated assault (deadly weapon), two counts of possession of a destructive device with intent to intimidate, and one count of making a terroristic threat; the evidence supported the verdicts.
- On August 17, 2007, Mason broke into the victims’ home, threatening to kill them unless they paid $30 for drugs.
- Later at their landlord’s house, Mason displayed a homemade device consisting of metal pipe, a cap, and a detonator with a loaded shotgun shell, and pointed it at the female victim’s head while threatening to kill her.
- Approximately an hour later, Mason discharged the device by striking the shell’s primer with a bolt.
- The State charged Mason under OCGA § 16-7-88(a) for possession of a destructive device, defined in OCGA § 16-7-80(4)(B) as a weapon expelling a projectile by an explosive with a bore over one-half inch, with an exception for sporting weapons.
- The Georgia Court of Appeals affirmed, rejecting Mason’s challenges to the sufficiency of the destructive-device element and to merger of offenses.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is the homemade device a destructive device under OCGA § 16-7-88(a)? | Mason argues the device is not a destructive device because it is homemade and not like sporting guns. | Mason contends the exclusion for sporting weapons applies only to manufactured guns, so his device should be excluded. | No; the exclusion does not swallow the rule; the device is a destructive device under the statute. |
| Whether the two possession counts merged with the two aggravated assault counts for sentencing | Mason asserts merger under the same act; the elements are not distinct to permit separate punishment. | State maintains the possession and aggravated assault counts require proof of different facts and thus do not merge. | There is no merger; separate convictions and sentences permitted for each victim. |
Key Cases Cited
- Busch v. State, 271 Ga. 591 (Ga. 1999) (strict construction against the State in criminal statutes; avoid surplusage)
- O'Neal v. State, 288 Ga. 219 (Ga. 2010) (statutory construction with plain meaning; avoid absurd results)
- Jackson v. Virginia, 443 U.S. 307 (Sup. Ct. 1979) (sufficiency review standard for criminal evidence)
- Singletary v. State, 310 Ga.App. 570 (Ga. App. 2011) (illustrates merger analysis in similar contexts)
- Louisyr v. State, 307 Ga.App. 724 (Ga. App. 2011) (possession of a destructive device completed prior to use may sustain separate counts)
- Garrett v. State, 306 Ga.App. 420 (Ga. App. 2010) (no merger where separate elements exist)
- State v. Marlowe, 277 Ga. 383 (Ga. 2003) (unit of prosecution for multiple victims in a crime spree permits separate convictions)
- Perez v. State, 281 Ga. 175 (Ga. 2006) (reaffirms elements-based approach to sustained convictions)
- Patterson v. State, 192 Ga.App. 449 (Ga. App. 1989) (reaffirms necessity of proof beyond mere location of the act)